Employers can expect COVID-19 to impact their workforce as it spreads throughout the United States and Florida. We recommend employers be prepared as it spreads locally and consider preventative measures to maintain the safety of their workplace and protect their employees within the law. For additional information, the Centers for Disease Control (CDC) has issued guidance for employers which we recommend checking regularly. Additionally, we recommend checking updates from federal, state, and local officials, and following directives and procedures that may be applicable to your particular organization.
What steps can employers take now?
Take a common sense approach to preventing the spread of highly communicable flu-like diseases in the workplace by practicing good hygiene, avoiding travel to areas of concern, and staying home when sick.
Inform employees that the company is monitoring the situation and taking appropriate precautions and provide a point person for questions regarding the company’s response to COVID-19.
Direct employees to immediately notify the company if they have been exposed to COVID-19 so that appropriate support and accommodations can be provided, and ensure employees that the disclosure of such information will be confidential.
Evaluate (or create) workplace emergency response protocols for infectious diseases and modify them to address a potential coronavirus outbreak. Protocols should include contact information for employer representatives, teleworking policies or plans, and leave policies in case of an outbreak at work or in the community.
Encourage sick employees to stay home.
Perform routine environmental cleaning.
Encourage employees to wash their hands, maintain safe social distance, avoid large gatherings, and consider changes to business travel and alternatives such as video conferencing.
Advise employees before traveling to take certain steps. Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which employees may travel.
Continue following relevant news updates. Remain informed about whether any employees become symptomatic, while keeping the workplace as safe and clean as possible in order to limit any potential spread of COVID-19.
Be deliberate in creating strategies for continuing business operations if the outbreak turns into an epidemic.
Frequently Asked Questions (FAQ)
Below are general questions and answers, but all situations should be considered on a case-by-case basis and with legal advice.
Can employers prohibit employees from traveling for business or personal reasons to areas affected or outside the U.S?
Yes. There are no laws prohibiting employers from limiting travel for employees to certain areas or countries outside the United States, although enforcement will be difficult.
Can employers require employees notify them of travel plans?
Yes. There is no law prohibiting employers from requiring employees to disclose travel plans. Again, expect enforcement problems.
What should an employer do if it suspects that one of its employees was exposed to the virus?
If an employer has a reasonable, objective belief that an employee may have been exposed to COVID-19 and is a danger to the workplace, the employer can require the employee to work from home. When determining whether you should require an employee to work from home, employers should consider the employee’s recent travel, the amount of time the employee has been back, and the employee’s symptoms, if any. If an employee’s position does not allow him or her to work from home, then the employer should consider providing the employee with paid leave for the duration of the incubation period (originally believed to be 14 days, although newer information indicates a longer period of up to 24 days).
Can employers require that employees be tested for COVID-19?
Depends on the circumstances. The Americans with Disabilities Act (ADA) prohibits mandatory medical examinations unless they are job related and consistent with business necessity. An employer must have a good faith, objective, and reasonable belief based on the evidence that the examination is necessary or that there is a direct threat to the employee’s co-workers. If so, then mandatory medical examination is permissible. Voluntary medical examinations should be encouraged, noting that employers have confidentiality requirements under the ADA if this information is disclosed by the employee. However, employers should be mindful of the CDC’s guidance that testing for COVID-19 may be delayed or limited due to increased demands on the healthcare system, and thus, employers may need to relax existing leave policies to account for this reality.
If an employee has contracted COVID-19 are they eligible for FMLA leave?
Probably. The Family Medical Leave Act (FMLA) entitles employees with a “serious health condition,” as defined by law, to unpaid leave and job restoration benefits. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment from a healthcare provider. Symptoms of COVID-19 are described as flu-like, and generally the common flu is not considered a serious health condition unless the condition meets the FMLA definition. In other words, a serious flu involving inpatient care and/or continuing treatment may qualify.
Accordingly, an employee with COVID-19 or an employee who is taking care of a qualifying family member with COVID-19 may be permitted to take protected FMLA leave based on the same conditions as any other employee and if the condition qualifies like any condition under the FMLA. Employers should note, however, that charging an employee FMLA leave who does not have an otherwise FMLA qualifying condition is prohibited. Stated differently, an employee without the condition, cannot be charged FMLA leave if they are out of the workplace. Likewise, if a parent is caring for a child without a serious health condition (or a child is home for canceled school due to an outbreak), they cannot be charged.
Can an employer require an employee with COVID-19 that is on leave to use FMLA leave for the absence?
Yes. Consistent with an employer’s policy and the leave qualifies as FMLA leave, an employee can be charged their FMLA leave while on a leave of absence if they have contracted COVID-19.
Can an employer require an employee to take leave or telework if they are suspected of having the disease or are returning from an area infected by the disease?
Yes. There is no law prohibiting this action. Non-exempt employees are not required to be paid for time they are not working under the Fair Labor Standards Act (FLSA). However, note that non-exempt employees must be paid for time spent working from home. Exempt employees that are directed to telework for precautionary reasons must continue to be paid
Is an employer required to attempt to maintain a workplace free from COVID-19 exposure?
Yes. Private employers are covered by the Occupational Safety and Health Administration (OSHA) and common sense requires sick employees to stay home. In a potential pandemic, although not specific to COVID-19, an employer can be cited for a general duty clause violation where OSHA proves, for example, that a) the pandemic virus was present in the workplace and the employer's efforts to control exposure were insufficient, and b) employees were required to perform tasks that exposed them to the hazard of a pandemic influenza. See 29 U.S.C. § 654(a)(1).
Both the CDC and OSHA have guidelines/checklists regarding disease control practices:
OSHA - https://www.osha.gov/SLTC/covid-19/
CDC - https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html
Should employers disclose the name of an employee that contracts COVID-19?
No. The ADA requires confidentiality of medical information except for a need-to-know basis including human resources personnel, direct supervisors, and the government. In the event of an outbreak, employers must balance this restriction of disclosing the identity of an employee with their efforts to protect their workforce from additional transmission of COVID-19.
FAQ For Public Employers
What affect does the Governor’s Executive Order No. 20-51 and the Declaration of Public Health Emergency have on Florida’s local governments?
The Governor’s Executive Order directs the State Surgeon General to declare a public health emergency and directs the Florida Department of Health to coordinate emergency response activities among state agencies and local governments. See Section 381.0011(7), Florida Statutes. The public health emergency authorizes the State Surgeon General to take actions that are necessary to protect the public health. See Section 381.00315, Florida Statutes. These actions may include declaring, enforcing, modifying, or abolishing the isolation and quarantine of persons, animals, and premises.
What does this mean for local law enforcement agencies?
Any order of the Department of Health issued pursuant to Section 381.00315(4), Florida Statutes, is immediately enforceable by law enforcement. See Section 381.00315(4), Florida Statutes.
What does this mean for local officials?
Appropriate city and county officials have a duty to assist the Department of Health and any of its agents with enforcement of health laws, rules, and orders. See Section 381.0012, Florida Statutes.
How is the Sunshine Law impacted by the emergency?
At this time, all municipal body meetings are still required to be open to the public and board members are still required to be physically present to constitute a quorum. However, an exemption may be made as the COVID-19 outbreak continues.
Are members of the public still able to comment at public meetings?
Generally yes, but there is a limited exception to the right to public comment in emergency situations affecting the public health, welfare, or safety, where allowing the public to comment would cause an unreasonable delay in the board or commission’s ability to act. See Section 286.0114, Florida Statutes.